Category Archives: CJEU case-law

Summary of the Opinion of AG Kokott in Puškár (on effective judicial remedies and lawful grounds for processing other than consent)

The Conclusions of Advocate General Kokott in C-73/16 Puškár were published on 30 March and remained under the radar, even though they deal with a couple of very important questions for EU data protection law that may have wide implications: effective judicial remedies, lawful grounds for processing other than consent, the right to access one’s own personal data. As a bonus, the AG refers to and analyses Article 79 GDPR – the right to a judicial remedy.

The analysis regarding effective judicial remedies under Article 47 Charter and Directive 95/46 could be relevant for the debate on essentially equivalence when it comes to adequacy decisions for international data transfers (for those of you who don’t remember, one of the two main findings in Schrems was that the Safe Harbor framework touched the essence of the right to effective judicial remedies, breaching thus Article 47 Charter). In this sense, the AG founds that a measure that does not restrict the category of people who could in principle have recourse to judicial review does not touch the essence of this right. Per a contrario, if a measure does restrict these categories of people, it would touch the essence of the right to an effective judicial remedy, and, therefore, it would breach the Charter.

Finally, a question of great importance for EU law in general is also tackled: what should national courts do when the case-law of the CJEU and the case-law of the ECtHR diverge regarding the protection of fundamental rights?

Here is what you will further read:

  1. Facts of the case and questions referred to the CJEU
  2. Requiring claimants to exhaust administrative remedies before going to Court can be compatible with the right to effective judicial remedy
  3. Internal documents of a tax authority obtained without the consent of the authority must be admitted as evidence if they contain personal data of the person who obtained the documents
  4. The performance of a task in the public interest allows a tax authority to create a black list without the consent of the persons concerned, if this task was legally assigned to the tax authority and the list’s use is appropriate and necessary (Article 7 and 8 Charter are not breached in this case)
  5. A missed opportunity to better define the difference between the right to privacy and the right to personal data protection
  6. Where ECtHR and CJEU case-law diverge, national courts have to ask the CJEU on how to proceed when the ECtHR case-law provides a higher level of protection for the rights of a person
  7. What to expect from the Court

Note that all highlights from the post are made by the author.

  1. Facts of the case and questions referred to the CJEU

C-73/16 Puškár concerns the request of Mr Puškár to have his name removed from a blacklist kept by the Finance Directorate of Slovakia which contains names and national ID numbers for persons “who purport to act, as ‘fronts’, as company directors”. The list associates a legal person or persons with a natural person who supposedly acted on their behalf (§15) and is created for the purposes of tax administration and combating tax fraud (§23 2nd question for a preliminary ruling). It transpires from several paragraphs of the Conclusions that Mr Puskar found out about the list and the fact that he is on the list from a leak (§23 2nd question;§72; §76). Instead of relying on the more straightforward right to erasure or right to object under data protection law, Mr Puškár claimed that “his inclusion in the above mentioned list infringes his personal rights, specifically the right to the protection of his good name, dignity and good reputation” (§16).

The Supreme Court rejected his claims, partly on procedural issues, partly on substantive grounds (§18). Later, the Constitutional Court found that “the Supreme Court infringed the fundamental right to the protection of personal data against unauthorised collection and other abuses, in addition to the right to privacy”, quashed its decision and send back the case to the Supreme Court for retrial, grounding its findings on ECtHR case-law (§20). In the context of these second round proceedings, the Supreme Court sent questions for a preliminary ruling to the CJEU to essentially clarify:

  • whether the right to an effective remedy under Article 47 of the Charter in the context of data protection is compatible with a national law requirement that a claimant must first exhaust the procedures available under administrative law (administrative complaints) before going to Court;
  • whether the legitimate grounds for processing under Directive 95/46 and Articles 7 and 8 of the Charter preclude tax authorities to create such a blacklist without the consent of the individuals on the list;
  • whether the list obtained by the claimant without the consent of the tax authorities is admissible as evidence;
  • whether national courts should give precedence to the case-law of the CJEU or the case-law of the ECtHR on a specific topic where the two diverge.
  1. Requiring claimants to exhaust administrative remedies before going to Court can be compatible with the right to effective judicial remedy

To reply to the first question, AG Kokott looks at Articles 28(4) and 22 of Directive 95/46 and also at Article 79 of the General Data Protection Regulation, which will replace Directive 95/46 starting with 25 May 2018.

Article 28(4) of Directive 95/46 states that each supervisory authority (Data Protection Authority) is to hear claims lodged by any person concerning the protection of his rights and freedoms with regard to the processing of personal data. Article 22 provides that, without prejudice to the remedy referred to in Article 28(4), every person is to have a right to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question (§37, §38).

In practice, this means that an individual who engages in Court proceedings for a breach of data protection law must be able to also initiate administrative proceedings with a DPA (complaints lodged with DPAs).

The same rule is kept under Article 79 GDPR, slightly broadened: the right to a judicial remedy must be effective and must be granted without prejudice to any administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority. 

AG Kokott explains that these rules still do not clarify “whether the bringing of legal proceedings may be made contingent upon exhaustion of another remedy. All that can be taken from Article 79 of the General Data Protection Regulation is that the judicial remedy must be effective. An obligation to exhaust some other remedy before bringing legal proceedings will consequently be impermissible if the judicial remedy is rendered ineffective as a result of this precondition” (§43).

The AG found that Article 47(1) of the Charter and the principle of effectiveness “ultimately embody the same legal principle” and that they can be examined jointly using the rules in Articles 47(1) and 52(1) of the Charter – which is the provision that enshrines the rules for limiting the exercise of the fundamental rights in the Charter (§51). Hence, the question is whether the obligation to exhaust administrative procedures before going to Court amounts to a justified interference with the right to an effective judicial remedy.

AG Kokott remarks that the interference is provided for by Slovakian law and that it does not touch the essence of the right to effective judicial remedy because “it does not restrict the category of people who could in principle have recourse to judicial review” (§56). [Small comment here: this means that a provision which would restrict the category of people who could in principle have recourse to judicial review touches the essence of the right in Article 47 Charter. Check out paragraphs 45 and 46 of the EDPS Opinion on the EU-US Umbrella Agreement commenting on the fact that Article 19 of the Agreement provides for the possibility of judicial redress only for citizens of the EU, excluding thus categories of individuals that would otherwise be covered by the Charter, such as asylum seekers and residents].

It remained to be analysed whether the interference complies with the principle of proportionality, which “requires that a measure be ‘appropriate, necessary and proportionate to the objective it pursues’” (§58). The AG retains the submission of the Supreme Court that “the exhaustion of the administrative remedy represents a gain in efficiency, as it provides the administrative authority with an opportunity to remedy the alleged unlawful intervention, and saves it from unwanted court proceedings” (§59). The AG considers that “obligatory preliminary proceedings are undoubtedly appropriate for achieving the objectives” and that a “less onerous method” does not suggest itself as capable of realising them to the same extent (§62).

However, the AG points out that the “specific form” of the administrative remedy is important to determine the appropriateness of the measure in practice. This condition applies in particular if there is uncertainty “as to whether the time limit for bringing an action begins to run before a decision has been made in the administrative action” (§64). Additionally, Article 47(2) Charter establishes the right of every person to have their case dealt with within a reasonable period of time. “While this right in fact relates to judicial proceedings, naturally it may not be undermined by a condition for the bringing of an action” (§67).

In conclusion, the AG considers that the right to effective judicial review under Article 47 Charter and the principle of effectiveness “do not preclude an obligation to exhaust an administrative remedy being a condition on bringing legal proceedings if the rules governing that remedy do not disproportionately impair the effectiveness of judicial protection. Consequently, the obligatory administrative remedy must not cause unreasonable delay or excessive costs for the overall legal remedy” (§71).

  1. Internal documents of a tax authority obtained without the consent of the authority must be admitted as evidence if they contain personal data of the person who obtained the documents

Essentially, the question asked by the Supreme Court is whether the contested list may be excluded as evidence due to the fact that it came into the possession of the claimant without the consent of the competent authorities (§72).

The AG considers that “a review should be carried out to determine whether the person affected has a right of access to the information in question. If this were the case, the interest in preventing unauthorized use would no longer merit protection” (§83).

Further, it is recalled that “under the second sentence of Article 8(2) of the Charter and Article 12 of the Data Protection Directive, everyone has the right of access to data which has been collected concerning him or her. This also applies in principle to data being recorded in the contested list. Furthermore, the persons so affected would, by virtue of the collection of the data, have to be informed of the use of the data, under either Article 10 or Article 11 of the Data Protection Directive” (§85).

While indeed Article 13 of the Directive allows this right to information to be restricted, it also “expressly requires that such restrictions be imposed by legislative measures” (§86). The AG acknowledged that “there is a potential risk that inspection and monitoring activities based on the list would be less effective if it were known who was named on that list” (§87). However, the national Court must examine:

  • “whether a restriction of the right of information of this kind is provided for” (§88) and
  • “where appropriate” if it is “justified” (§88). This is an indication that even if such an exemption would be provided for by law, a further analysis is needed to see whether the exemption is justified.

A key point the AG makes is that “even if there are indications of a legitimate interest in a hypothetical, legally justified non-disclosure of the list in question, the national courts must also examine whether in the individual case these outweigh the legitimate interests of the individual in bringing the proceedings” (§89). This is important because it is a clear indication that when a controller relies on their legitimate interest as a ground for processing, it always has to engage in a balancing exercise with the legitimate interests (and rights) of the data subject.

In conclusion, the AG established that refusing to accept as evidence a document obtained by the claimant without the consent of an authority is not possible under the principle of a fair hearing in Article 47 Charter when the document contains personal data of the claimant, which the authority is required to disclose to the claimant under Article 12 and 13 of the Data Protection Directive.

  1. The performance of a task in the public interest allows a tax authority to create a black list without the consent of the persons concerned, if this task was legally assigned to the tax authority and the list’s use is appropriate and necessary (Article 7 and 8 Charter are not breached in this case)

The Supreme Court wanted to know whether the fundamental right to privacy (Article 7 Charter) and protection of personal data (Article 8 Charter) and the Data Protection Directive prohibit a Member State from creating a list of personal data for the purposes of tax collection without the consent of the persons concerned.

The AG points out that “this question is primarily to be answered in the light of the Data Protection Directive, as this specifies the rights to privacy and data protection” (§95).

The AG further recalls that Article 7 of the Data Protection Directive allows processing of personal data if it is based on one of the six lawful grounds for processing provided for (§99) [NB: of which only one is “consent”!]. While the AG acknowledges that three of the six conditions are applicable in this case (1 – performance of a task in the public interest [Article 7(e)]; 2 – legitimate interest of the controller [Article 7(f)] and 3 – necessity of compliance with a legal obligation [Article 7(c)]), she considers the examination of the latter 2 as “superfluous”: “This is because all parties acknowledge that tax collection and combating tax fraud are tasks in the public interest within the meaning of Article 7(e) of the Data Protection Directive” (§100).

A much-welcomed clarification is further brought by the AG, who specifies that Article 7(e) of the Data Protection Directive “must be read in conjunction with the principles of Article 6. According to Article 6(1)(b), personal data must only be collected for specified, explicit and legitimate purposes. Within the scope of Article 7(e), the purpose of the data processing is inseparably linked to the delegated tasks. Consequently, the transfer of the task must clearly include the purpose of the processing” (§106).

This clarification is welcomed because it reminds controllers that even if they correctly process personal data on one of the lawful grounds for processing (such as consent or legitimate interest) in compliance with Article 7 of the Directive, they still have to comply with all the other safeguards for processing personal data, including the principles for processing in Article 6 of the Directive (purpose limitation, data minimization etc).

The AG remarks that the reference for a preliminary ruling does not specify the purpose of the contested list and leaves it to the Supreme Court to look further into this question (§107). Additionally, the AG also considers that the Supreme Court “will have to examine whether the creation and use of the contested list and in particular the naming of Mr Puškár is necessary for the claimed public interest”. This is yet another reminder how important “necessity” is for personal data protection in the EU legal framework (check out EDPS’s recently published “Necessity Toolkit”).

Another very interesting point that the AG brings forward is how naming a person on this black list constitutes “a considerable interference with the rights of the person concerned”, beyond the right to privacy in Article 7 Charter – it also touches (§110):

  • “his reputation and could lead to serious, practical disadvantages in his dealings with the tax authorities;
  • the presumption of innocence in Article 48(1) of the Charter;
  • the legal persons associated with the person concerned, which will be affected in terms of their freedom to conduct business under Article 16 of the Charter”.

This finding is a testimony of the importance of complying with the right to the protection of personal data, as non-compliance would have various consequences on several other fundamental rights.

As the AG explains, “such a serious interference of this kind can only be proportionate if there are sufficient grounds for the suspicion that the person concerned purported to act as a company director of the legal persons associated with him and in so doing undermined the public interest in the collection of taxes and combating tax fraud” (§111).

In conclusion, the tax authorities can create a blacklist such as the one in the main proceedings on the grounds of Article 7(e) of the Data Protection Directive, but this assumes that (§117):

  • “the task was legally assigned to the tax authorities,
  • the use of the list is appropriate and necessary for the purposes of the tax authorities and
  • there are sufficient grounds to suspect that these persons should be on the list”.
  1. A missed opportunity to better define the difference between the right to privacy and the right to personal data protection

Further, the AG spelled out that “neither the fundamental rights to privacy, Article 7 of the Charter, or data protection, Article 8, would in this case prevent the creation and use of the list” (§117).

The analysis to reach this conclusion was another missed opportunity to persuade the Court of Justice to better delineate the two fundamental rights protected by Article 7 and Article 8 of the Charter. The AG referred to these as “the fundamental rights to privacy and data protection”.

Without a clear analysis of what constitutes interference with the two rights, the AG referred to “naming of a person on the contested list” as “affecting” both fundamental rights (§115). In the same paragraph, she further analysed en masse “these interferences”, writing that they are only justified “if they have a sufficient legal basis, respect the essence of both fundamental rights, and preserve the principle of proportionality” (§ 115). Considering that the legality and proportionality of the measure were addressed in previous sections, the AG merely stated that “the adverse effects associated with inclusion on the contested list, those interferences do not meet the threshold of a breach of the essence of those rights” before concluding that neither of the two Charter articles would prevent the creation of such a blacklist.

  1. Where ECtHR and CJEU case-law diverge, national courts have to ask the CJEU on how to proceed, even if the ECtHR case-law provides a higher level of protection for the rights of a person

The last question is one that is extremely interesting for EU lawyers in general, not necessarily for EU data protection lawyers, because it tackles the issue of different levels of protection of the same fundamental right emerging from the case-law of the Court of Justice of the EU in Luxembourg, on one hand, and the European Court of Human Rights in Strasbourg, on the other hand.

As the AG summarizes it, “the fourth question is aimed at clarifying whether a national court may follow the case-law of the Court of Justice of the European Union where this conflicts with the case-law of the ECtHR” (§118). This issue is relevant in our field because Article 8 of the European Convention of Human Rights shares partially the same material scope of Article 7 and Article 8 of the EU Charter of Fundamental Rights (Article 8 of the Convention is more complex), and Article 52(3) of the Charter states that “the rights in the Charter, which correspond to rights guaranteed by the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR), have the same meaning and scope as conferred by the ECHR” (§122). However, the second sentence of Article 52(3) of the Charter permits EU law to accord more extensive protection (§122).

The AG specifies that “EU law permits the Court of Justice to deviate from the case-law of the ECtHR only to the extent that the former ascribes more extensive protection to specific fundamental rights than the latter. This deviation in turn is only permitted provided that it does not also cause another fundamental right in the Charter corresponding to a right in the ECHR to be accorded less protection than in the case-law of the ECtHR. One thinks, for example, of cases in which a trade-off must be made between specific fundamental rights” (§123).

Not surprisingly, the AG advises that when the case-law of the two Courts comes in conflict, the national courts should directly apply the case-law of the CJEU when it affords more protection to the fundamental rights in question, but they should send a reference for a preliminary ruling to the CJEU to ask which way to go when the case-law of the ECtHR affords enhanced protection to the fundamental right in question (§124 and §125). The argument of the AG is that the latter case “inevitably leads to a question of the interpretation of EU law with regard to the fundamental right in question and Article 52(3) of the Charter” which, if performed by the national Court, could further “amount to the view that the interpretation of the fundamental right in question by the Court of Justice is not compatible with Article 52(3)”.

As for the relevance of this question to the case at hand – it remains a mystery. The AG herself pointed out that “the admissibility of the question in this form is dubious, particularly as the Supreme Court does not state on which issue the two European courts supposedly are in conflict and the extent to which such a conflict is significant for the decision in the main proceedings” (§119).

  1. What to expect from the Court

How will the CJEU reply to these questions? My bet is that, in general, the Court will follow the AG on substance. However, it is possible that the Court will simplify the analysis and reformulate the questions in such a way that the answers will be structured around three main issues:

  • lawfulness of creating such a blacklist (and the lawful grounds for processing in the Data Protection Directive) and compatibility of this interference with both Article 7 and Article 8 of the Charter (I do hope, having low expectations nonetheless, that we will have more clarity of what constitutes interference with each of the two rights from the Court’s perspective);
  • compatibility of procedural law of Slovakia in the field of data protection with Article 47 Charter (in fact, this may be the only point where the Court could lay out a different result than the one proposed by the AG, in the sense that the condition to exhaust first administrative remedies before engaging in litigation may be considered a non-proportionate interference with the right to effective judicial remedy; it is also possible that the Court will refer for the first time directly to the GDPR);
  • the relationship between ECtHR and CJEU case-law on the same fundamental right.

Suggested citation: G. Zanfir-Fortuna, “Summary of the Opinion of AG Kokott in Puškár (on effective judicial remedies and lawful grounds for processing other than consent)”, pdpEcho.com, 24 April 2017.

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Door-to-door gathering of data by religious group goes to the CJEU

Non-automated processing | Filing system | Household Exemption | Controller | Religious community

The Court of Justice of the EU received questions for a preliminary ruling from Finland regarding the practice of a religious group (Jehova’s Witnesses) to gather and record data after door-to-door visits, without informing the concerned individuals about this practice. The questions referred in Case C-25/17 Tietosuojavaltuutettu v Jehovah’s Witnesses concern the interpretation of several key points of Directive 95/45:

  1. Exceptions from the application of the Directive – and particularly Article 3(2) second paragraph, which excludes processing “by a natural person in the course of a purely personal or household activity” from the material scope of the Directive. The referring court wants the CJEU to clarify whether this exception applies to gathering data and writing observations in paper file connected to the door-to-door activity, by members of the religious group (Question 1).
  2. The concept of “filing system” as defined in Article 2(d) of the Directive.The question referred by the national Court is whether, taken as a whole, the manual collection of personal data (name and address and other information and characteristics of a person) carried out in connection with door-to-door evangelical work constitutes a filing system, being thus subject to the application of the Directive (Question 2).
  3. The concept of “controller” under Article 2(d) of the Directive. In particular, the referring court wants the CJEU to clarify whether in this situation the controller is considered to be the religious community as a whole, “even though the religious community claims that only the individual members carrying out evangelical work have access to the data collected” (Questions 3 and 4).

Without knowing the details of the case, and based only on the information available in the questions referred by the national Court, here is my bet on how the CJEU will reply:

  • The definition of “purely household activity” does not extend to the door-to-door evangelical work of a religious community; this exemption is to be interpreted strictly (“must be narrowly construed”; “must apply only in so far as is strictly necessary”), according to the CJEU in C-212/13 Rynes (§28 and §29). The CJEU also explained that this exception applies “only where it is carried out in the purely personal or household setting of the person processing the data” (§31) – which is not the case of representatives of a religious community gathering information during evangelical work.
  • The records the evangelical workers keep should be considered as constituting a “filing system”. This concept is defined as “any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis”. According to Recital 15 of the Directive, data in a filing system is “structured according to specific criteria relating to individuals, so as to permit easy access to the personal data in question”. If the religious community would claim that their records are not structured according to specific criteria – e.g. ZIP codes; members of the community/non-members; individuals interested in the community/individuals not interested, and that they don’t allow easy access to the personal data in question, then the purpose of having a detailed record would not be achieved. In other words, having an unstructured file is incongruent with the purpose of the activity. While it is true that the Member States have been given a margin of appreciation to lay down different criteria for determining the constituents of a structured set of personal data and the different criteria governing access to such a set, the criteria must be compatible with the definition in the Directive. Moreover, applying “loosely” the definition would amount to a limitation in relation to the protection of personal data, which must apply “only in so far as is strictly necessary” (Rynes §28, DRI §52).
  • The controller of this processing operation should be considered the religious community, as this entity establishes the purposes of the processing activity (the records are probably meant to facilitate the evangelical work of the community – there is no reference in the questions sent to the declared purpose of this activity, but it is only logical that such records are kept to facilitate the evangelical work) and the means of this activity (“by dividing up the areas in which the activity is carried out among members involved in evangelical work, supervising the work of those members and maintaining a list of individuals who do not wish to receive visits from evangelists” – according to the referring Court)

Since this new case provided an opportunity to discuss processing of personal data done by a religious community, there are a couple of additional points to be made.

First of all, according to Recital 35 of the Directive, “processing of personal data by official authorities for achieving aims, laid down in constitutional law or international public law, of officially recognized religious associations is carried out on important grounds of public interest“. This means that the religious associations do not need to rely on consent or on their legitimate interest as lawful grounds for processing. However, relying on public interest for the lawful ground of processing does not mean that they don’t have to comply with all the other obligations under data protection law. For instance, they still have to comply with the data quality principles, they still have to inform data subjects about the details of the processing activity and they still have to reply to requests of access, correction, erasure.

Second, some of the data gathered in such circumstances is sensitive data, as it refers to “religious beliefs” (Article 8 of the Directive, Article 9 of the GDPR). This means that the data should be processed with additional care and strengthened safeguards.

In case you are wondering whether the GDPR specifically addresses processing of data by religious communities, churches, Recital 35 of the Directive was transplanted to the GDPR, in Recital 55. In addition, the GDPR enshrines a specific provision that covers “existing data protection rules of churches and religious associations” – Article 91. This provision allows Member States that have specific legislation (“comprehensive rules”) in place dedicated to churches and religious communities, at the time of entry into force of the GDPR, to continue to apply those rules, but only if “they are brought into line with this Regulation”. In addition, according to the second paragraph, processing of personal data done by churches and religious associations that apply comprehensive national rules according to the first paragraph “shall be subject to the supervision of an independent supervisory authority, which may be specific”. Again, the conditions for this to happen is that this specific supervisory authority must fulfil the conditions laid down for independent supervisory authorities in the GDPR.

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Note: Thanks to Dr. Mihaela Mazilu-Babel for pointing out this new case.

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CJEU in Manni: data subjects do not have the right to obtain erasure from the Companies Register, but they do have the right to object

by Gabriela Zanfir-Fortuna

The recent judgment of the CJEU in Case C-398/15 Manni (9 March 2017) brings a couple of significant points to the EU data protection case-law:

  • Clarifies that an individual seeking to limit the access to his/her personal data published in a Companies Register does not have the right to obtain erasure of that data, not even after his/her company ceased to exist;
  • Clarifies that, however, that individual has the right to object to the processing of that data, based on his/her particular circumstances and on justified grounds;
  • Clarifies the link between the purpose of the processing activity and the data retention period, and underlines how important is the purpose of the processing activity when analysing whether a data subject can obtain erasure or blocking of data.
  • Provides insight into the balancing exercise between interests of third parties to have access to data published in the Companies Register and the rights of the individual to obtain erasure of the data and to object to its processing.

This commentary will highlight all points enumerated above.

1. Facts of the case

Mr Manni had requested his regional Chamber of Commerce to erase his personal data from the Public Registry of Companies, after he found out that he was losing clients who performed background checks on him through a private company that specialised in finding information in the Public Registry. This happened because Mr Manni had been an administrator of a company that was declared bankrupt more than 10 years before the facts in the main proceedings. In fact, the former company itself was radiated from the Public Registry (§23 to §29).

2. The question in Manni

The question that the CJEU had to answer in Manni was whether the obligation of Member States to keep public Companies Registers[1] and the requirement that personal data must be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected[2] must be interpreted as meaning that individuals must be allowed to “request the authority responsible for maintaining the Companies Register to limit, after a certain period has elapsed from the dissolution of the company concerned and on the basis of a case-by-case assessment, access to personal data concerning them and entered in that register” (§30).

3. Applicability of Directive 95/46 (Data Protection Directive – ‘DPD’)

First, CJEU clarified that its analysis does not concern processing of data by the specialized rating company, and it only refers to the obligations of the public authority keeping the companies register (§31). Second, the CJEU ascertained that the provisions of the DPD are applicable in this case:

  • the identification data of Mr Manni recorded in the Register is personal data[3] – “the fact that information was provided as part of a professional activity does not mean that it cannot be characterized as personal data” (§34);
  • the authority keeping the register is a “controller”[4] that carries out “processing of personal data”[5] by “transcribing and keeping that information in the register and communicating it, where appropriate, on request to third parties” (§35).

4. The role of the data quality principles and the legitimate grounds for processing in ensuring a high level of protection of fundamental rights

Further, CJEU recalls its case-law stating that the DPD “seeks to ensure a high level of protection of the fundamental rights and freedoms of natural persons” (§37) and that the provisions of the DPD “must necessarily be interpreted in the light of the fundamental rights guaranteed by the Charter”, and especially Articles 7 – respect for private life and 8 – protection of personal data (§39). The Court recalls the content of Articles 7 and 8 and specifically lays out that the requirements under Article 8 Charter “are implemented inter alia in Articles 6, 7, 12, 14 and 28 of Directive 95/46” (§40).

The Court highlights the significance of the data quality principles and the legitimate grounds for processing under the DPD in the context of ensuring a high level of protection of fundamental rights:

“[S]ubject to the exceptions permitted under Article 13 of that directive, all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 of the directive” (§41 and case-law cited).

The Court applies this test in reverse order, which is, indeed, more logical. A processing activity should, first, be legitimate under one of the lawful grounds for processing and only after ascertaining that this is the case, the question of compliance with the data quality principles should arise.

CJEU finds that in the case at hand the processing activity is legitimized by three lawful grounds (§42, §43):

  • compliance with a legal obligation [Article 7(c)];
  • the exercise of official authority or the performance of a task carried out in the public interest [Article 7(e)] and
  • the realization of a legitimate interest pursued by the controller or by the third parties to whom the data are disclosed [Article 7(f)].

5. The link between the data retention principle, the right to erasure and the right to object

Article 6(1)(e) of the DPD requires that personal data are kept in a form which permits identification of data subjects for no longer than what is necessary for the purposes for which the data were collected or for which they are further processed. This means that controllers should only retain personal data up until it serves the purpose for which it was processed and automatically anonymise, erase or otherwise make unavailable that data. If the controller does not comply with this obligation, the data subject has two possible avenues to stop the processing: he/she can either ask for erasure of that data, or they can object to the processing based on their particular situation and a justified objection.

CJEU explains that “in the event of failure to comply with the condition laid down in Article 6(1)(e)” of the DPD, “Member States guarantee the person concerned, pursuant to Article 12(b) thereof, the right to obtain from the controller, as appropriate, the erasure or blocking of the data concerned” (§46 and C-131/12 Google/Spain §70).

In addition, the Court explains, Member States also must “grant the data subject the right, inter alia in the cases referred to in Article 7(e) and (f) of that directive, to object at any time on compelling legitimate grounds relating to his particular situation to the processing of data relating to him, save where otherwise provided by national legislation”, pursuant to Article 14(a) DPD (§47).

The CJEU further explains that “the balancing to be carried out under subparagraph (a) of the first paragraph of Article 14 … enables account to be taken in a more specific manner of all the circumstances surrounding the data subject’s particular situation. Where there is a justified objection, the processing instigated by the controller may no longer involve those data” (§47).

6. The pivotal role of the purpose of the processing activity in granting the right to erasure and the right to object

After establishing these general rules, the Court decides that in order to establish where data subjects have the “right to apply to the authority responsible for keeping the register to erase or block the personal data entered in that register after a certain period of time, or to restrict access to it, it is first necessary to ascertain the purpose of that registration” (§48).

The pivotal role of the purpose of the processing operation should not come as a surprise, given the fact that the data retention principle is tightly linked to accomplishing the purpose of the processing operation.

In this case, the Court looked closely at Directive 68/151 and explained at length that the purpose of the disclosure provided for by it is “to protect in particular the interests of third parties in relation to joint stock companies and limited liability companies, since the only safeguards they offer to third parties are their assets” (§49) and “to guarantee legal certainty in relation to dealings between companies and third parties in view of the intensification of trade between Member States” (§50). CJEU also referred to primary EU law, and specifically to Article 54(3)(g) EEC, one of the legal bases of the directive, which “refers to the need to protect the interests of third parties generally, without distinguishing or excluding any categories falling within the ambit of that term” (§51).

The Court further noted that Directive 68/151 makes no express provision regarding the necessity of keeping personal data in the Companies Register “also after the activity has ceased and the company concerned has been dissolved” (§52). However, the Court notes that “it is common ground that even after the dissolution of a company, rights and legal relations relating to it continue to exist” (§53) and “questions requiring such data may arise for many years after a company has ceased to exist” (§54).

Finally, CJEU declared:

“in view of the range of possible scenarios … it seems impossible, at present, to identify a single time limit, as from the dissolution of a company, at the end of which the inclusion of such data in the register and their disclosure would no longer be necessary” (§55).

7. Conclusion A: there is no right to erasure

The Court concluded that “in those circumstances” the data retention principle in Article 6(1)(e) DPD and the right to erasure in Article 12(b) DPD do not guarantee for the data subjects referred to in Directive 68/151 a right to obtain “as a matter of principle, after a certain period of time from the dissolution of the company concerned, the erasure of personal data concerning them” (§56).

After already reaching this conclusion, the Court also explained that this interpretation of the provisions in question does not result in “disproportionate interference with the fundamental rights of the persons concerned, and particularly their right to respect for private life and their right to protection of personal data as guaranteed by Articles 7 and 8 of the Charter” (§57).

To this end, the Court took into account:

  • that Directive 68/151 requires “disclosure only for a limited number of personal data items” (§58) and
  • that “it appears justified that natural persons who choose to participate in trade through such a company are required to disclose the data relating to their identity and functions within that company, especially since they are aware of that requirement when they decide to engage in such activity” (§59).

8. Conclusion B: but there is a right to object

After acknowledging that, in principle, the need to protect the interests of third parties in relation to joint-stock companies and limited liability companies and to ensure legal certainty, fair trading and thus the proper functioning of the internal market take precedence over the right of the data subject to object under Article 14 DPD, the Court points out that

it cannot be excluded, however, that there may be specific situations in which the overriding and legitimate reasons relating to the specific case of the person concerned justify exceptionally that access to personal data entered in the register is limited, upon expiry of a sufficiently long period after the dissolution of the company in question, to third parties who can demonstrate a specific interest in their consultation” (§60).

While the Court leaves it to the national courts to assess each case “having regard to all the relevant circumstances and taking into account the time elapsed since the dissolution of the company concerned”, it also points out that, in the case of Mr Manni, “the mere fact that, allegedly, the properties of a tourist complex built … do not sell because of the fact that potential purchasers of those properties have access to that data in the company register, cannot be regarded as constituting such a reason, in particular in view of the legitimate interest of those purchasers in having that information” (§63).

9. Post Scriptum

The Court took a very pragmatic approach in dealing with the case of Mr Manni. The principles of interpretation it laid down are solid – such an analysis indeed requires looking at the legitimate grounds for processing and the relevant data quality principle. Having the Court placing strong emphasis on the significance of the purpose of the processing activity is welcome, just like having more guidance on the balancing exercise of the rights and interests in question. In addition, a separate assessment of the right to obtain erasure and of the right to object is very helpful with a view towards the future – the full entering into force of the GDPR and its heightened rights of the data subject.

The aspect of the judgment that leaves some room for improvement is analysing the proportionality of the interference of the virtually unlimited publishing of personal data in the Companies Register with Articles 7 and 8 of the Charter. The Court does tackle this, but lightly – and it brings two arguments only after already declaring that the interference is not disproportionate. Moreover, the Court does not distinguish between interferences with Article 7 and interferences with Article 8.

Finally, I was happy to see that the predicted outcome of the case, as announced in the pdpEcho commentary on the Opinion of the Advocate General Bot, proved to be mainly correct: “the Court will follow the AG’s Opinion to a large extent. However, it may be more focused on the fundamental rights aspect of balancing the two Directives and it may actually analyse the content of the right to erasure and its exceptions. The outcome, however, is likely to be the same.”

Suggested citation: G. Zanfir-Fortuna, “CJEU in Manni: data subjects do not have the right to obtain erasure from the Companies Register, but they do have the right to object”, pdpEcho.com, 13 March 2017.


[1] Article 3 of Directive 68/151.

[2] Article 6(1)(e) of Directive 95/46.

[3] Article 2(a) of Directive 95/46.

[4] Article 2(d) of Directive 95/46.

[5] Article 2(b) of Directive 95/46.

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The right to be forgotten goes back to the CJEU (with Google, CNIL, sensitive data, freedom of speech)

The Conseil d’Etat announced today that it referred several questions to the Court of Justice of the EU concerning the interpretation of the right to be forgotten, pursuant to Directive 95/46 and following the CJEU’s landmark decision in the Google v Spain case.

The questions were raised within proceedings involving the application of four individuals to the Conseil d’Etat to have decisions issued by the CNIL (French DPA) quashed. These decisions rejected their requests for injunctions against Google to have certain Google Search results delisted.

According to the press release of the Conseil d’Etat, “these requests were aimed at removing links relating to various pieces of information :a video that explicitly revealed the nature of the relationship that an applicant was deemed to have entertained with a person holding a public office; a press article relating to the suicide committed by a member of the Church of Scientology, mentioning that one of the applicants was the public relations manager of that Church; various articles relating to criminal proceedings concerning an applicant; and articles relating the conviction of another applicant for having sexually aggressed minors.

The Conseil d’Etat further explained that in order to rule on these claims, it has deemed necessary to answer a number of questions “raising serious issues with regard to the interpretation of European law in the light of the European Court of Justice’s judgment in its Google Spain case.

Such issues are in relation with the obligations applying to the operator of a search engine with regard to web pages that contain sensitive data, when collecting and processing such information is illegal or very narrowly framed by legislation, on the grounds of its content relating to sexual orientations, political, religious or philosophical opinions, criminal offences, convictions or safety measures. On that point, the cases brought before the Conseil d’Etat raise questions in close connection with the obligations that lie on the operator of a search engine, when such information is embedded in a press article or when the content that relates to it is false or incomplete”.

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Greek judges asked the CJEU if they should dismiss evidence gathered under the national law that transposed the invalidated Data Retention Directive

Here is a new case at the Court of Justice of the EU that the data protection world will be looking forward to, as it addresses questions about the practical effects of the invalidation of the Data Retention Directive.

old_bailey_microcosm

(licensed under Creative Commons)

Case C-475/16 K. (yes, like those Kafka characters) concerns criminal proceedings against K. before Greek courts, which apparently involve evidence gathered under the Greek national law that transposed the now-invalidated Data Retention Directive. The Directive was invalidated in its entirety by the CJEU in 2014, after the Court found in its Digital Rights Ireland judgment that the provisions of the Directive breached Articles 7 (right to respect for private life) and 8 (right to the protection of personal data) of the Charter of Fundamental Rights.

The Greek judges sent in August a big set out questions for a preliminary ruling to the CJEU (17 questions). Among those, there are a couple of very interesting ones, because they deal with the effects in practice of the invalidation of an EU Directive and what happens with national laws of the Member States that transposed the Directive.

For instance, the national judge asks whether national courts are obliged not to apply legislative measures transposing the annulled Directive and whether this obligation also means that they must dismiss evidence obtained as a consequence of those legislative measures (Question 3). The national judge also wants to know if maintaining the national law that transposes an invalidated Directive constitutes an obstacle to the establishment and functioning of the internal market (Question 16).

Another question raised by the national judge is whether the national legislation that transposed the annulled Data Retention Directive and that remained in force at national level after the annulment is still considered as falling under the scope of EU law (Question 4). The answer to this question is important because the EU Charter and the supremacy of EU law do not apply to situations that fall outside the scope of EU law.

The Greek judge didn’t miss the opportunity to also ask about the effect on the national law transposing the Data Retention Directive of the fact that this Directive was also enacted to implement a harmonised framework at the European level under Article 15(1) of the ePrivacy Directive (Question 5). The question is whether this fact is enough to bring the surviving national data retention laws under the scope of EU law.

As long as the Charter will be considered applicable to the facts of the case, the national judge further wants to know whether national law that complies partly with the criteria set out in the Digital Rights Ireland decision still breaches Articles 7 and 8 of the Charter because it doesn’t comply with all of it (Question 13). For instance, the national judge estimates that the national law doesn’t comply with the request that the persons whose data are retained must be at least indirectly in a situation which is liable to give rise to criminal prosecutions (para 58 DRI), but it complies with the request that the national law must contain substantive and procedural conditions for the access of competent authorities to the retained data and objective criteria by which the number of persons authorised to access these data is limited to what is strictly necessary (paras 61, 62 DRI).

Lastly, it will be also interesting to see whether the Court decides to address the issue of what “serious crime” means in the context of limiting the exercise of fundamental rights (Questions 10 and 11).

If you would like to dwell into some of these topics, have a look at the AG Opinion in the Tele2Sverige case, published on 19 July 2016. The judgment in that case is due on 21 December 2016. Also, have a look at this analysis of the Opinion.

As for a quick “what to expect” in the K. case from my side, here it is:

  • the CJEU will seriously re-organise the 17 questions and regroup them in 4 to 5 topics, also clarifying that it only deals with the interpretation of EU law, not national law or facts in national proceedings;
  • the national laws transposing the Data Retention Directive will probably be considered as being in the field of EU law – as they also regulate within the ambit of the ePrivacy Directive;
  • the Court will restate the criteria in DRI and probably clarify that all criteria must be complied with, no exceptions, in order for national measures to comply with the Charter;
  • the CJEU will probably not give indications to the national courts on whether they should admit or dismiss evidence collected on the bases of national law that does not comply with EU law – it’s too specific and the Court is ‘in the business’ of interpreting EU law; the best case scenario, which is possible, is that the Court will give some guidance on the obligations of Member States (and hopefully their authorities) regarding the effects of their transposing national laws when relevant EU secondary law is annulled;
  • as for what “serious crime” means in the context of limiting fundamental rights, let’s see about that. Probably the Court will give useful guidance.

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